Gacek v. Premier Medical Management Inc.

Filing 72

Order re: 71 MOTION to Unseal the Original Complaint filed by Premier Medical Management Inc. Gacek & the Government are ordered to show cause why the motion should not be granted by 10/31/2017. Signed by District Judge William H. Steele on 10/24/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
ex rel. MARK R. GACEK, SR.,

)
)
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Plaintiff,
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v.
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PREMIER MEDICAL MANAGEMENT,
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INC., d/b/a PREMIER MEDICAL GROUP, )
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Defendant.
)

CIVIL ACTION 14-0342-WS-B

SHOW CAUSE ORDER
This matter comes before the Court on Premier’s Motion to Unseal Original Complaint
(doc. 71).
Relator, Mark R. Gacek, Sr., M.D., brought this qui tam action under the False Claims
Act, 31 U.S.C. §§ 3729 et seq., against defendant, Premier Medical Management, Inc. On
January 13, 2017, the Government filed a Notice (doc. 23) in which it formally declined to
intervene in this action and proposed that certain contents of the court file (including Gacek’s
First Amended Qui Tam Complaint (doc. 21) but excluding his original Complaint (doc. 2)) be
unsealed and served. On January 17, 2017, the undersigned entered an Order (doc. 24) that
generally adopted the Government’s proposal, including unsealing the First Amended Qui Tam
Complaint but not the original Complaint. In a Motion filed nine months later, Premier Medical
objects that the sealed status of the original Complaint places it “in the impossible, and
Constitutionally forbidden, position of having to defend against allegations and claims that are
hidden from it because they are contained in” the original Complaint. (Doc. 71, at 1.)
Normally, an amended complaint supersedes the complaint it amends and becomes the
operative pleading. See, e.g., Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243
(11th Cir. 2007) (“As a general matter, an amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment, and is no longer a part of the pleader’s
averments against his adversary.”) (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg

v. M/V OLYMPIA VOYAGER, 463 F.3d 121, 1215 (11th Cir. 2006)).1 However, the Eleventh
Circuit has recognized an exception to this rule where the amended complaint adopts the original
complaint. See, e.g., Schreane v. Middlebrooks, 522 Fed.Appx. 845, 848 (11th Cir. July 2, 2013)
(“we have determined that an amended complaint supersedes the initial complaint unless the
amended complaint specifically refers to or adopts the initial complaint”) (citation and internal
quotation marks omitted); Barnett v. Baldwin County Bd. of Educ., 60 F. Supp.3d 1216, 1225
(S.D. Ala. 2014) (“The amended complaint does not incorporate by specific reference … facts in
the original complaint, and therefore, it does not fall under an exception to the general rule.”).
As Premier Medical correctly points out, the Dresdner Bank rule is of little comfort here
because in multiple places in the First Amended Qui Tam Complaint, Gacek references and realleges the entirety of his original Complaint in cursory fashion. See doc. 21, ¶¶ 5 (“Relator realleges all prior paragraphs of the Complaint as if set forth fully herein”), 113 (“Relator realleges all prior paragraphs of the Complaint and Amended Complaint as if set forth fully
herein.”), 116 (same), 121 (same), 124 (same), 127 (same). In the context of Gacek’s 31-page,
133-paragraph Amended Complaint, this pleading tactic of generically adopting his less detailed
original Complaint at every turn appears unnecessary, unhelpful, and obfuscatory.2 Nonetheless,
1

See also Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (“when
Mr. Hoefling filed the second amended complaint, the first amended complaint (and its attached
exhibits) became a legal nullity”); Pledger v. Reliance Trust Company, 240 F. Supp.3d 1314,
1320 n.3 (N.D. Ga. 2017) (“the original pleading is abandoned by the amendment”); Barnett v.
Baldwin County Bd. of Educ., 60 F. Supp.3d 1216, 1224 (S.D. Ala. 2014) (“In this circuit, an
amended complaint supersedes the complaint it amends and it becomes the operative complaint
in the action.”); Galloway v. City of Abbeville, Ala., 871 F. Supp.2d 1298, 1304 (M.D. Ala.
2012) (“when a party files an amended complaint, the amended version supersedes the
original”).
2

The Court would expect this circumstance of Gacek globally incorporating an
earlier version of his pleading into a lengthy First Amended Complaint to be addressed and
resolved during discovery in order to avoid needless ambiguity and confusion at trial as to
exactly what Gacek’s claims are and the factual allegations on which they are based. In other
words, when asked during discovery to specify which allegations contained in the original
Complaint but omitted from the Amended Complaint Gacek is relying on, relator must answer in
specific terms and will be held to those responses. The Court does not expect this case to go to
trial with a 31-page Amended Complaint that also adopts in unknown ways certain unidentified
allegations from a previous 20-page iteration of the same document that Gacek might use to
ambush opposing counsel and disrupt the proceedings.

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given that Gacek has elected to plead his claims in that manner, Premier Medical would appear
to have a compelling need to access the sealed original Complaint so that it is not unfairly
blindsided by any hidden facts in that pleading that were not expressly restated in the Amended
Complaint.
In light of these concerns, Gacek and the Government are ordered to show cause on or
before October 31, 2017 why Premier Medical’s Motion to Unseal Original Complaint should
not be granted. If no timely response is received, the Court will promptly enter an order granting
the Motion.
DONE and ORDERED this 24th day of October, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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